Lang v. Town Council of Town of North Kingstown, 1070

• Decision Date: 14 October 1954
• Docket Number: No. 1070,1070
• Citation: 108 A.2d 166,82 R.I. 361
• Parties: Ellen F. LANG v. The TOWN COUNCIL OF THE TOWN OF NORTH KINGSTOWN. M. P.
• Court: Rhode Island Supreme Court

Page 166

108 A.2d 166

82 R.I. 361

Ellen F. LANG v. The TOWN COUNCIL OF THE TOWN OF NORTH KINGSTOWN.

M. P. No. 1070.

Supreme Court of Rhode Island.

Oct. 14, 1954.

Michael DeCiantis, West Warwick, R. I., for petitioner.

James H. Donnelly, Town Sol., Providence, R. I., for respondent.

BAKER, Justice.

This is a petition for a writ of certiorari to review a decision of the town council of the town of North Kingstown whereby after an advertised hearing the council denied petitioner's request that it amend the zoning ordinance of that town in such a manner that certain property owned by her would be located in a residence C district instead of in a residence B district. The writ was issued and in response thereto the pertinent papers and records have been duly certified to this court.

It appears from the petition that the application to the town council was made solely to enable petitioner to legally apply for a special permit to establish and operate a mobile homes park, so called, with a capacity of one hundred units. No constitutional question is raised herein and the petition was heard on its merits and on respondent's motion to dismiss. This motion was based on the ground that the petition for certiorari seeks a review of a legislative action of the town council and that certiorari does not lie to review such an action. In the view which we take of this proceeding we deem it unnecessary to pass specifically on the motion to dismiss.

It is our opinion that the disposition of the present petition in the circumstances is controlled by the principles laid down in the case of Beauregard v. Town Council of the Town of South Kingstown, R. I., 107 A.2d 283, 284, which was recently decided by this court. In that case the petition for certiorari, which is generally similar to the one now before us, was brought under Public Laws 1950, chapter 2490, sec. 9, being part of a special enabling act authorizing the town council of South Kingstown to enact zoning ordinances.

In quashing the writ issued in the Beauregard case we made the following statement with respect to section 9: 'An examination of section 9, supra, discloses no provision therein which either in express language or by necessary implication gives a party, who considers himself aggrieved by any action of the town council in enacting, amending or repealing a zoning ordinance, a review of every such action as of right by certiorari. When the above section is construed in connection with the language of the whole act, the right of review given by P.L.1950, chap. 2490, sec. 9, to a person who considers himself aggrieved by a 'decision' of a town council is limited to alleged violations of sections 3, 6 and 10 of the special...